GREER V THE MANAGER OF CUSTODIAL SERVICES OF AUCKLAND PRISON HC AK CIV 2008-404-858

GREER V THE MANAGER OF CUSTODIAL SERVICES OF AUCKLAND PRISON HC AK CIV 2008-404- 858 21 February 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-858UNDER the Habeas Corpus Act 2001 BETWEEN ALAN IVO GREER Applicant AND THE MANAGER OF CUSTODIAL SERVICES OF AUCKLAND PRISON Respondent Hearing: 21 February 2008 Appearances: A I Greer In Person E R Harrison for the respondent Judgment: 21 February 2008(ORAL) JUDGMENT OF POTTER JSolicitors: Crown Solicitor, P.O. Box 2213, Downtown Auckland Copy to: A I Greer, Paremoremo Prison, P.O. Box 50124, AucklandIntroduction[1] The applicant Mr Greer has applied for a writ of habeas corpus. His application was filed by facsimile in the High Court on 19 February 2008. Mr Greer is currently an inmate at Auckland Prison. [2] The application for writ of habeas corpus names as first respondent the Superintendent of the Auckland Prison and as second respondent the Visiting Justice by office rather than by name. [3] The Crown has applied for an order removing the Visiting Justice as the second respondent on the grounds that the Visiting Justice is not responsible for the incarceration of Mr Greer. That is a submission correctly made by the Crown. This is a technical matter but one that requires correction. I therefore order that the Visiting Justice be removed as second respondent in the application for writ of habeas corpus. [4] Mr Greer was convicted on 14 July 2004 of a range of sexual offences and was sentenced to seven years imprisonment. He is currently serving that sentence. His statutory release date and sentence expiry date, I am informed, both fall on 6 January 2010.The application[5] Mr Greer has sought a writ of habeas corpus essentially on the grounds that he was ordered by the Visiting Justice to 12 days cell confinement for a disciplinary offence. His application contends that he was not provided with his minimum requirements under the New Zealand Bill of Rights Act 1990, that the Visiting Justice was not impartial and that the Visiting Justice failed to provide him with the minimum requirements to be able to defend himself against the charge brought internally within the Prison. He contends therefore that the sentence of 12 days cell confinement is unlawful and maintains it is a detention within a detention.[6] Accordingly the thrust of Mr Greer's challenge is not to the legality of his detention as such. Rather it is to the penalty imposed on him for a disciplinary offence found to have been proved by the Visiting Justice. [7] Under the Habeas Corpus Act 2001 ("the Act") an application for a writ of habeas corpus must be given precedence over all other matters before the High Court. Thus Mr Greer's application was given a hearing today pursuant to s 9(3) of the Act.Opposition[8] The Crown filed a notice of opposition formally opposing the application for writ of habeas corpus. The application is opposed on the grounds that Mr Greer is lawfully detained pursuant to the warrants of commitment to which I have already referred, and that Mr Greer does not appear to challenge the legality of his underlying detention but rather the sentence imposed on him by the Visiting Justice of 12 days cell confinement. These matters are referred to in an affidavit of Anthony Graeme Queree which has been provided to the Court in draft form due to the urgency with which the application must be brought before the Court. It has also been provided to Mr Greer in draft form. Because the affidavit has not been sworn, Ms Harrison for the Crown applied for exhibits A and B, which are the warrants of commitment, to be admitted to evidence under s 130 of the Evidence Act. They are admitted accordingly.Factual background[9] The factual background as detailed in the draft affidavit of Mr Queree is that on 13 February 2008 the Visiting Justice sentenced Mr Greer to cell confinement for a period of 12 days and 35 days loss of privileges pursuant to s 137(3)(c) of the Corrections Act 2004 in relation to an internal offence, namely contravention of s 128(1)(f) of the Corrections Act 2004, which prohibits prisoners from having articles in their cells without the approval of an officer. A misconduct report exhibited to the affidavit records that on 24 December 2007 at the Auckland Prison asearch was made of Cell 20 occupied by Mr Greer, when a piece of metal crafted into a weapon was found. The report states that Mr Greer has been the sole occupant of this cell for a considerable time and that before he took up occupancy the cell was searched by staff. Mr Greer's cell confinement commenced on 13 February 2008 and is due to end on 25 February 2008. Of course his loss of privileges will extend beyond that date.Decision[10] Mr Greer's application for writ of habeas corpus, as I have discussed with him this morning, does not challenge the lawfulness of his detention. He is imprisoned pursuant to the warrants of commitment dated 14 July 2004. Mr Greer's application does not challenge the legality of those warrants and no basis to challenge the legality of the warrants has been suggested. Mr Greer's concern is the penalty imposed on him for what was found to be a misconduct offence within the prison. [11] There is ample authority about the limitations of a writ of habeas corpus. That authority frequently referred to, with which Mr Greer will no doubt be well familiar, is Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616 where a five member bench of the Court of Appeal considered an appeal against a decision to refuse a writ of habeas corpus to a prisoner who had been re-classified from high medium security to maximum security and transferred to another prison. The Court dismissed the appeal commenting:[61] Traditionally the writ has been used only where it is sought to release someone entirely from (unlawful) custody. The passage from Ex parte Rogers (para [23] above) has echoes in many later judgments, not least of which is Lord Jauncey of Tullichettle's observations in Ex parte Hague (at p 176), also quoted by Wild J, that placing one prisoner in a strip cell and segregating another "altered the conditions under which they were detained but did not deprive them of their liberty which they had not already lost when initially confined". [62] It is also our view that a change to the conditions on which an inmate is being detained either by segregation, reclassification or transfer to another institution does not create a new detention under an enactment for the purposes of s 23(1) of the Bill of Rights . Nor,if an inmate is unlawfully treated while detained, is the detention itself rendered unlawful. The remedy is the cessation of the unlawful element, not the cessation of the detention. . . . [65] In our view, the appropriate way in which sentenced prisoners can test the lawfulness of the conditions of their incarceration is by application for judicial review. In cases involving human rights the events which are impugned will be closely scrutinised (Pharmaceutical Management Agency Ltd v Roussel Uclaf Australia Pty Ltd [1998] NZAR 58 AT P 66).[12] The Crown also referred to the case of Cant v Visiting Justices at Paremoremo Prison AK HC CIV 2006-404-3294 16 June 2006, Rodney Hansen J, where the applicant sought a writ of habeas corpus on the grounds that a sentence of ten days cell confinement imposed on him by a Visiting Justice was unlawful because it breached natural justice, the New Zealand Bill of Rights Act 1990 and the Corrections Act 2004. The applicant in that case complained that the prison authorities failed to provide the applicant with adequate facilities for the preparation of his submissions and other documents, a matter Mr Greer has also raised this morning in relation both to his appearance before the Visiting Justice and in anticipation of an application for judicial review. [13] Rodney Hansen J held at [6]:There is no challenge in the application to the grounds on which the applicant is detained. Rather, it will be seen that the complaint is as to the conditions on which the applicant is being held. As I have said to the applicant in the course of argument and as I understand him to appreciate, if not concede, this is not an available basis for the exercise of jurisdiction to grant habeas corpus.[14] I have had a similar discussion with Mr Greer this morning and have covered with him the limits of the Court's jurisdiction in habeas corpus. [15] Ms Harrison also referred in submissions to a very recent Court of Appeal decision in which Mr Greer was the appellant: Greer v The Attorney-General [2008] NZCA 7. The Court in the final paragraph reminded Mr Greer that issues of conditions of detention are more properly dealt with by way of judicial review and referred to the cases of Manuel v Superintendent of Hawkes Bay Regional Prison[2005] 1 NZLR 161 at [40] (CA) and Greer v The Parole Board at Auckland Prison(CA271/06 21 December 2006) at [7].Judicial review[16] In the course of my discussions with Mr Greer, he raised the option that the Court should treat his application as an application for judicial review. But he himself volunteered there was much information that would be required in respect of such an application including the transcript of the proceedings which he said was not available to him. The Crown opposes this course of action. [17] In the case of Cant v Visiting Justices at Paremoremo Prison Rodney Hansen J refused to treat the application for habeas corpus as an application for judicial review. He said:[9] That is not a course which I consider to be properly available to me in this case. I accept Ms Davidson's submissions that in order for the Court and the respondents to be given fair notice of the matters complained of and to provide a proper foundation for the directions which need to be made under s 10 of the Judicature Amendment act 1972 to enable the proceeding to be advanced to a hearing, it is necessary for a statement of claim to be filed which meets at least the basic requirements of the Judicature Amendment Act. In particular and pursuant to s 9 of the Judicature Amendment Act, the statement of claim must set out: (a) The facts on which the applicant bases his claim to relief; (b) The grounds on which the applicant seeks relief; and (c) The relief sought. [10] It is important that the statement of claim identify with precision the particular decisions which are challenged, by whom those decisions were made and the grounds on which it is claimed those decisions were unlawful.[18] That is the process which I consider would need to be undertaken in this case if Mr Greer wishes to challenge the decision of the Visiting Justice.[19] I direct that Mr Greer be provided with a copy of the transcript of the proceedings before the Visiting Justice. I understand from Ms Harrison the Crown will facilitate that. [20] In summary, I am not prepared to treat this application as an application for judicial review. That will need to be pursued by separate application if Mr Greer considers he has a valid challenge to the decision of the Visiting Justice. [21] Mr Greer in the course of discussion this morning raised that if he is required to make an application for judicial review he should be given interim relief from the penalty currently imposed by the Visiting Justice. Ms Harrison submitted that there are no grounds to support the grant of interim relief and said the Crown opposes it. No grounds were advanced, and there is no basis which suggests to me that this is a case where interim relief should be granted. The facts that give rise to the decision of the Visiting Justice as detailed in the appendices to Mr Queree's affidavit give rise to concerns which indicate to me that interim relief would not be appropriate in this case.Conclusion[22] For the reasons I have set forth above and on the basis of the authorities, particularly Bennett and Cant to which I have referred, the application for habeas corpus is dismissed. I rule that the application for habeas corpus made not be treated as an application for judicial review in the circumstances of this case.